Why Johnny can’t stream: How video copyright went insane

Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build—and to use? More importantly, which is more likely to be legal?

If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV, was enjoined out of existence a decade ago. The company behind Door Number Two, Aereo, just survived its first round in court and is still going strong.

The difference between them—and the reason for Aereo's willfully perverse design—originated in a critical 2008 DVR decision by the federal Second Circuit Court of Appeals in Cartoon Network v. CSC Holdings (which everyone just calls "Cablevision"). The tech at issue in Cablevision was a "DVR in the cloud," and because of the way the Second Circuit answered the question of whether a DVR "performs" a copyrighted TV show when the user hits "play," the decision opened a whole range of possibilities for entrepreneurs willing to mash up technologies in ways God never intended.

This is the story of Cablevision, the companies that followed in its wake, and how we got to the strange place where wasting resources on thousands of tiny antennas made you legal—but where using one antenna broke the law.

Backdrop

To understand what Cablevision decided and why it matters, we need to understand a bit about how copyright law treats broadcasting and streaming. For a very long time, copyright has covered more than just making copies. In 1856, for example, Congress gave playwrights an exclusive right to stage their plays in public. That "public performance right" has gradually expanded to cover almost everything that can be copyrighted and performed, from movies to musicals.

The meaning of a "public performance," however, has been surprisingly hard to pin down. For more than a century, technologists have been coming up with unexpected ways of bringing media to people. Some cases were easy: the courts quickly decided that showing movies in theaters and broadcasting songs on the radio were public performances requiring permission of the rightsholder, while mere audition (in English, that's "listening to the radio") was not.

If the Internet is a copyright minefield, Cablevision had just right-clicked a new safe square for startups to stand on.

Cable TV, though, broke the mold. Back when the typical cable TV operator was an edgy upstart, the cable business model was retransmission without the express written consent of anyone. A cable network would put up an antenna somewhere with good TV reception, lay wires over the hills and far away to communities with terrible TV reception, and relay the signals to paying subscribers there.

"Broadcasters perform. Viewers do not perform," the court explained in Fortnightly. A cable network was just a way to help viewers receive distant TV broadcasts, like a gigantic pair of rabbit ears.

But the Supreme Court had meddled with the primal forces of nature, and Congress promptly swung into action, revising the law to override Fortnightly and Teleprompter. The 1976 Copyright Act added a "transmit clause" to its definitions to make clear that whether a work was performed "by means of any device or process" and whether the public received it "in the same place or in separate places and at the same time or at different times," it would still infringe if transmitted without permission.

Meanwhile, Congress bought off the cable companies—who didn't like this at all—with a complicated licensing scheme. In essence, copyright law was sucked into telecommunications law's gravity well. In time, satellite TV broadcasters got the same deal: they were subject to copyright, but with their own crazy-intricatelicensing system spelling out exactly what they could do and how much it would cost.

Harmony and order returned to the universe—until the Internet came along.

Son of cable

The Internet has never played nice with carefully crafted regulatory schemes. Since streaming became practical in the 1990s, a series of adventuresome dot-com entrepreneurs have been searching for a way to repeat the cable systems' original legal coup, bringing live TV to Joe User—preferably without paying to do so. (It's hard to make a living by streaming video when copyright owners can always turn around and grab back your profits by demanding higher licensing fees. Exhibit 1: Netflix. Exhibit B: Hulu.)

The first high-profile try was the aforementioned service behind Door Number One, the Canadian website iCraveTV. It hoisted an antenna in Toronto, picked up TV signals from Buffalo, New York then turned around and streamed those signals on the Internet (surrounded, of course, with ads). It tried to lock out Americans, but it didn't try very hard (it asked users to enter a Canadian area code) and nearly half of its viewership came from the United States. When the movie studios sued in the United States, the court had little difficulty claiming jurisdiction over iCraveTV and its officers. An injunction was entered; goodbye, iCraveTV.

More recently, websites like FilmOn and ivi have tried to solve the copyright problem by fleeing back into telecommunications law. Both of them restream over-the-air TV on the Internet. ivi argued that it was a "cable system" and was therefore entitled to the Copyright Act's special license for cable companies; FilmOn called itself a "carrier" with a similar goal.

Neither ended well. A federal court shut down ivi, giving a long history of the cable license and pointing out, rather inconveniently for ivi, that the company hadn't even attempted to comply with any of the FCC's extensive rules for cable licensing. The appeals court agreed—an Internet streaming server is not a "cable system." (While the FCC is slowly considering whether to start treating pure TV-over-IP services like cable systems, it's not there yet.)

ABC1 controller Brendan Dahill said the decision to air the show online before television was motivated by a desire to reduce piracy, as well as fulfill the needs of drooling Whovians, who have waited almost a year for the new series.

" Piracy is wrong, as you are denying someone their rights and income for their intellectual property," Mr Dahill said. "The fact that it is happening is indicative that as broadcasters we are not meeting demand for a segment of the population.

"So as broadcasters we need to find convenient ways of making programs available via legal means to discourage the need for piracy."

I am kind of surprised that this hasn't touched on deduplication. Particularly in the cablevision version where all the "copies" really will be identical - even if they have 1000 users recording something it is only going to take up the space of one copy since deduplication will just point the other copies at the same data blocks.

Even with Aereo likely they have a massive overlap in data blocks since it's still all the same type of content. Plus with the size of these businesses and not needing super fast access, they can have massive single volumes to really max out the usefulness of deduplication.

Point being that the article goes to extreme lengths to point out the wastefulness of this process, when in reality (especially for cablevision) it is not really very wasteful. Copyright laws are still batshit crazy though.

ABC1 controller Brendan Dahill said the decision to air the show online before television was motivated by a desire to reduce piracy, as well as fulfill the needs of drooling Whovians, who have waited almost a year for the new series.

" Piracy is wrong, as you are denying someone their rights and income for their intellectual property," Mr Dahill said. "The fact that it is happening is indicative that as broadcasters we are not meeting demand for a segment of the population.

"So as broadcasters we need to find convenient ways of making programs available via legal means to discourage the need for piracy."

"The new iView app for iPhones and iPod Touch, launched on June 26, has seen a phenomenal 434,000 downloads recorded to date, with 210,000 downloads recorded in its first week,"Mr Dahill said."

Who would have thought it. Give people what they want and it becomes a raging success.

I live outside the UK in an non english speaking country. iPlayer is not available here (Yes, i know there's an international version, but it's Apple only and that's a completely different discussion). My only options for watching Dr Who are 1. Don't. and 2. Download.

As a big Dr Who fan guess which one i'll pick. The crazy thing is i'd more than happily pay the BBC for this so they can go right on producing it, but crazy distribution rights and copyright law prevents me.

As a big Dr Who fan guess which one i'll pick. The crazy thing is i'd more than happily pay the BBC for this so they can go right on producing it, but crazy distribution rights and copyright law prevents me.

There are a lot of people in the US that would gladly pay for iPlayer as well to get Dr Who as well as Top Gear (the most downloaded show... in the world). I know that I would download the new series of Top Gear every Sunday right after it aired because I didn't feel like waiting the 6-7 months before BBC America would get around to airing it. Now that I live in the UK, I may start downloading American shows to not wait the months until they air the same shows... but I think it's a little better from the US to the UK.

I am kind of surprised that this hasn't touched on deduplication. Particularly in the cablevision version where all the "copies" really will be identical - even if they have 1000 users recording something it is only going to take up the space of one copy since deduplication will just point the other copies at the same data blocks.

Even with Aereo likely they have a massive overlap in data blocks since it's still all the same type of content. Plus with the size of these businesses and not needing super fast access, they can have massive single volumes to really max out the usefulness of deduplication.

Point being that the article goes to extreme lengths to point out the wastefulness of this process, when in reality (especially for cablevision) it is not really very wasteful. Copyright laws are still batshit crazy though.

I may be misunderstanding your comment, but deduplication and its legality (or lack thereof in these cases) is touched on several times in the piece, and James explains why it's important under the law that some of these services not de-duplicate.

Two items: Does Cablevision create a new copy of a broadcast when you ask for it, or do you need to schedule the recording ahead of time? THe former seems much more useful but I can see it being blocked by the same sticking point as reusing a DVD for multiple viewings.

Also, it was Ben Stiller who starred in "Little Fockers," not Ben Affleck. He has enough stinkers to his name already. /pedant

Two items: Does Cablevision create a new copy of a broadcast when you ask for it, or do you need to schedule the recording ahead of time? THe former seems much more useful but I can see it being blocked by the same sticking point as reusing a DVD for multiple viewings.

Also, it was Ben Stiller who starred in "Little Fockers," not Ben Affleck. He has enough stinkers to his name already. /pedant

My understanding is that you need to schedule the recording ahead of time, just as in a traditional DVR. Otherwise, Cablevision would be the one storing and transmitting content--essentially running a VOD service of its own. The idea of the RS-DVR was that the user remains in control and thus it should be just as legal as a home DVR.

This morning my Daughter wanted to watch a particular epsiode of Martha Speaks (a kids show). I turned on the TV and Martha Speaks just happened to be on the local PBS affiliate (via rabbit ears antenna). So I left that on.

After a minute, she ran over and complained "that's not the right one daddy". Correct, it was not the episode she wanted to watch. It was the one PBS decided to air that morning.

So I fired up Netflix and loaded the episode she wanted to watch.

When this crop of kids hits their teens and twenties, the old distribution models will be dead. This generation will demand everything on demand, ala carte, and those that don't provide it will be ignored.

This morning my Daughter wanted to watch a particular epsiode of Martha Speaks (a kids show). I turned on the TV and Martha Speaks just happened to be on the local PBS affiliate (via rabbit ears antenna). So I left that on.

After a minute, she ran over and complained "that's not the right one daddy". Correct, it was not the episode she wanted to watch. It was the one PBS decided to air that morning.

So I fired up Netflix and loaded the episode she wanted to watch.

When this crop of kids hits their teens and twenties, the old distribution models will be dead. This generation will demand everything on demand, ala carte, and those that don't provide it will be ignored.

++

In a strange way, Kids programming and how its distributed will be the death knell for traditional viewing models. Most kids shows end up on Netflix, or on Cable "Free for View" and iTunes seasons are not too expensive. My kids are used to finding lots of options for on demand viewing. They are setting an expectation with new viewers that will be difficult to destroy. Especially as those same kids will eventually work for these broadcasters and studios some day.

Seriously one of the best articles ever published on Ars. The perfect blend of law and technology. Linear time line is good for simpletons like me. "How we got here" is an angle that needs to be explored more often on more topics. Numerous pages is needed for such an article, and generous links helps as well. Great job Mr. Grimmelman.

I don't get the no-deduplication thing. You still have a discrete block of data that is "the file"; it's just made of pointers to random blocks of data that flesh out the file. (At a massively simplified level, but the point stands.)

It's still a moderately asinine workaround to a problem that should be nonexistant, but it should be as legal as having multiple non-deduped copies.

ABC1 controller Brendan Dahill said the decision to air the show online before television was motivated by a desire to reduce piracy, as well as fulfill the needs of drooling Whovians, who have waited almost a year for the new series.

" Piracy is wrong, as you are denying someone their rights and income for their intellectual property," Mr Dahill said. "The fact that it is happening is indicative that as broadcasters we are not meeting demand for a segment of the population.

"So as broadcasters we need to find convenient ways of making programs available via legal means to discourage the need for piracy."

I also found the de-duplication issue fascinating. Especially since it amounts to neat technical trickery. I can create a "copy" on the file system that is a separate instance, but due to backend mojo the disk/SAN/SSD will only keep one copy. When a user deletes their copy, that file reference goes away destroying their copy, but if de-duplication is there the main copy persists. Seems like it gets around the legal requirements...

On another note, I've been a near lifetime subscriber to the full cable tv packages including HBO/Showtime, etc. I've always wondered if I could torrent the hell out of any show run on those channels in the last decade and then claim a fair use defense, because I'm just time shifting content that I paid for...

So, basically, copyright has mostly become a slugfest between content and service providers, while both try to shred the remaining portion that defines public rights. And how does this meet the constitutional mandate of "promoting progress"? Well, fuck if I know.

I don't mean to "beat a dead horse" but I wanted to throw in my "Great Article" comment. This is the very reason I read Ars everyday. More on topic I would think the TV industry would learn from the mistakes of the music industry. If you make everything easily available at a reasonable price point then you will make MORE money than you currently do. If you refuse then technology will hurt your aging business model and people will watch your shows anyway for free.

I don't get the no-deduplication thing. You still have a discrete block of data that is "the file"; it's just made of pointers to random blocks of data that flesh out the file. (At a massively simplified level, but the point stands.)

It's still a moderately asinine workaround to a problem that should be nonexistant, but it should be as legal as having multiple non-deduped copies.

When the *AAs get involved, nothing can be too nitpickingly asinine.

Remember, a judge had to actually declare at some point "yes, ram is a distinct copy from disk. But one that is required for the basic functioning of a computer". If not, we would be paying extra just to be able to copy a song from disk to ram.

So this customer buys 1 DVD for $9.99 and then later sells it back for $9.50 and buys the next DVD for $9.99. Now instead of DVD's the reseller provides a single user "Digital Copy" at a remote site that can stream your own copy and offers to buy it back and sells a new one. Add a monthly "storage" fee and we have a legit business?

As a big Dr Who fan guess which one i'll pick. The crazy thing is i'd more than happily pay the BBC for this so they can go right on producing it, but crazy distribution rights and copyright law prevents me.

It isn't much better here.* I live in an English speaking country, but iPlayer doesn't work.* I'd happily pay the BBC for the right to view it, but alas, I'd also have to pay Comcast over $85/month for the access to 1 show I'm interested in seeing. They'd like for me to power a "digital cable box" all month long too. They do provide access to some content online ... hummmm. The $85/month is the real issue. If it were $20 and I brought my own equipment, that would be better. Cable service, without cable. THAT would be nice.

Buying the Dr. Who DVDs a season late, then reselling them used is an option, just not a convenient one. Using an "online copy" is not legal here, though I could probably get away with it for a few shows, that isn't who I am. I try hard to play by the rules, even when I don't like them. When the rules are too much, I don't play.

I don't know if either Netflix or AmazonOD carry the show, alas neither of those work on my video playback platform of choice (XBMC/Linux). XBMC/Linux or nothing. I'm stubborn that way. I do it for everyone, not just myself.

So, I'll do without Dr. Who or turn watching it into an event over at a friends house instead. I'll bring the beer, they will order the pizza, and we'll have a fun social event watching 4 episodes together. Sometimes, I'll bring "time shifted" TV recordings (with all commercials removed) over too, so the cost of the content is shared.

OTA TV recording is still perfectly legal after all.

Satellite FTA (Ku band) is also an option. There are many satellites that do not encrypt the signals broadcasting to different parts of the Earth. Something like 50 satellites broadcasting to North America exist that a 31 inch dish can pick up without any subscription.

So this customer buys 1 DVD for $9.99 and then later sells it back for $9.50 and buys the next DVD for $9.99. Now instead of DVD's the reseller provides a single user "Digital Copy" at a remote site that can stream your own copy and offers to buy it back and sells a new one. Add a monthly "storage" fee and we have a legit business?

Even weirder for the deduplication issue, what if cablevision decided to offload their data storage to a third party service? They tell the third party to store one copy per customer. Have they met their requirements if the third party deduplicates?

Here is the part that I don't understand, why does it have to have a seperate antenna for each recorder? It shouldn't matter if the RF signal is picked up by one antenna or many, since the matter is all about each user having their own recording, scheduling their own recording, and playing it back. Unless this is about getting around the retrans issues the cable companies got into, but the antenna will pick up all the stations and its the tuner that will select which station they will see, which is in the customers control, its not like a cell network where everyone has a unique rf feed, everyone watching OTA is getting the same RF stream.

Very odd, but I guess insurance against the crazy lengths the lawyers will go to.

Here is the part that I don't understand, why does it have to have a seperate antenna for each recorder? It shouldn't matter if the RF signal is picked up by one antenna or many, since the matter is all about each user having their own recording, scheduling their own recording, and playing it back. Unless this is about getting around the retrans issues the cable companies got into, but the antenna will pick up all the stations and its the tuner that will select which station they will see, which is in the customers control, its not like a cell network where everyone has a unique rf feed, everyone watching OTA is getting the same RF stream.

Very odd, but I guess insurance against the crazy lengths the lawyers will go to.

Yea, i suspect it is to get away from any remote chance of being accused of broadcasting without a license. They can via this setup reasonably demonstrate a separate pipe from signal to viewer, meaning that there is no chance of the signal ever reaching two viewers from one source (broadcast).

On another note, I've been a near lifetime subscriber to the full cable tv packages including HBO/Showtime, etc. I've always wondered if I could torrent the hell out of any show run on those channels in the last decade and then claim a fair use defense, because I'm just time shifting content that I paid for...

No, that's still not legal, but you may or may not be the one breaking the law.

In the case of torrent specifically, while you are downloading you are simultaneously making available to others; this constitutes creating and distributing an unauthorized copy of the work.

Using a technology which can't upload while it downloads circumvents that, but the person providing the copy for you to download is making available an unauthorized copy of the work. The extent to which this means you are breaking the law by downloading it I'm not certain of. So far, the big filesharing decisions (e.g. Thomas-Rasset) have revolved around the making available, not the accessing for use.